TaxTMI 
TaxTMI 
2008 (11) TMI 68
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....474.97, an addition of Rs.45,80,168.09 thereto was made by the Assessing Authority assessing a sum of Rs.3,58,87,960.97 by way of total turnover. The order of assessment proceeded on the basis that receipt shown as commission amounting to Rs.45,80,168.09 from M/s. Poseidon Food Company is not supported and proved by any documentary evidence. Appellant contended that the services so rendered is not a 'sale' and thus, the said order of assessment is wholly illegal and without jurisdiction. 4. An appeal was preferred thereagainst. Before the appellate authority the appellant produced income-tax returns, orders of assessments passed by the income-tax officer, orders placed by the exporters and the certificates granted by Marine Products Export Development Authority (MPEDA), Cochin. 5. By reason of an order dated 24^th October, 2000 the first appellate authority upon noticing that the assessee had produced copies of the certificates issued by the MPEDA, Cochin and copies of letters issued by various parties requesting the appellant to inspect the goods to be exported, held that the professional services rendered to the exporters involving skill and knowledge did not constitute any....
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....minimum damage that could be caused to the petitioner by virtue of Section 12 of the Act. In other words, we uphold this addition as a necessary consequence of the petitioner's failure to explain the receipt in this account." 9. A review application filed thereagainst has also been dismissed by an order dated 22nd March, 2007. 10. Mr. Bali, learned counsel appearing on behalf of the appellant urged: (i) The learned Tribunal as also the High Court committed a serious error in so far as they failed to take into consideration that the appellant having produced documents to show that two sister concerns of the appellant had been carrying out two different businesses, the income derived by one could not have been added to the sales turnover, although the business of the other does not occasion any sale. (ii) Although burden of proof in terms of Section 12 of the Act is on the assessee but having regard to the authentic documents produced by the appellant, the same must be held to have been discharged. (iii) The orders of the learned Tribunal as well as the High Court are manifestly erroneous in so far as they failed to take into consideration the distinction between an or....
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....he basis that the parameters of "sale" were carefully defined. But having said that, it is sufficient for the purposes of this judgment to find, as we do, that a telephone service is nothing but a service. There is no sales element apart from the obvious one relating to the handset, if any. That and any other accessory supplied by the service provider in our opinion remain to be taxed under the State sales tax laws. We have given the reasons earlier why we have reached this conclusion." 15. It is true that in terms of Section 12 of the Act the burden is on the assessee. The said provision reads thus :- "12. Burden of proof. - (1) The burden of proving that any transaction of dealer is not liable to tax under this Act shall lie on such dealer. (2) The burden of proving that the dealer has not received fair market price on any transaction shall lie on such dealer. (3) The burden of proving the genuineness of the transport of goods using the documents prescribed in section 29, shall lie on such dealer." 16. A provision relating to "reverse burden", must be construed having regard to the nature of the statute; as the general law is that the burden of proof would be on th....
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.... property in goods (whether as goods or in some other form) involved in the execution of a works contract; (3) delivers any goods on hire-purchase or any system of payment by instalments; (4) transfers the right to use any goods for any purpose (whether or not for a specified period) for cash, deferred payment or other valuable consideration; (5) supplies, by way of or as part of any service or in any other manner whatsoever, goods, being food or any other articles for human consumption or any drink (whether or not intoxicating), where such supply or service is for cash, deferred payment or other valuable consideration); Explanation.- (1) A society (including a cooperative society, club or firm or an association or body of persons, whether incorporated or not) which whether or not in the course of business, buys, sells, supplies or distributes goods from or to its members for cash or for deferred payment, or for commission, remuneration or other valuable consideration, shall be deemed to be a dealer for the purposes of this Act; Explanation.- (2) The Central Government or a State Government, which, whether or not in the course of business, buy, sell, supply or distri....